SECURITIES AND FUTURES COMMISSION v. DESCARTES INVESTMENT MANAGEMENT LTD AND OTHERS

HCMP 796/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 796 OF 2009

_______________

_______________

BETWEEN

_______________

________________

R U L I N G

________________

1.  Had the 5th Defendant’s and the Intervener’s solicitors not instructed Mr Barlow SC, I would have had no difficulty in saying that the case should be tried by a Chinese-speaking judge. The Plaintiff says that where Mr Barlow has a junior who reads and writes Chinese, he can be assisted by his junior as and when required in understanding the voluminous number of documents in Chinese.

2.  A trial by a bilingual judge with Mr Barlow remaining in the case would have to be conducted in English. The witnesses would be examined and cross-examined in English and the judge would be addressed by counsel in English. When a witness is referred to a Chinese document by the Plaintiff’s bilingual counsel or by the judge himself I cannot imagine that the judge would be prepared to ignore Mr Barlow’s inability to speak or read Chinese by proceeding on such occasions only in Cantonese or Mandarin, according to the witnesses chosen dialect, and leave it to the court interpreter to provide private interpretation to Mr Barlow by sitting at his side or by directing public interpretation from Chinese into English for Mr Barlow’s benefit. I do not believe that conducting the trial in such a dual-lingual way on the occasions that this might be required would be satisfactory nor would it be a particularly edifying procedure.

3.  Apart from the question of the cost of translation of the documents, which I will come to shortly, the question then becomes one of whether the Defendant and the Intervener’s are entitled to counsel of their choice, in this case Mr Barlow, a notably mono-lingual counsel, who has considerable experience in this type of case or, whether, in all the circumstances, their solicitors should withdraw their brief and instruct bilingual counsel or, retain Mr Barlow but content themselves with less than ideal alternatives as to how the case would have to proceed with him in it.

4.  It should be observed that this is a substantial case. The original Mareva injunction froze $160 million in a case relating to investor protection on the stock market which is a matter of concern for Hong Kong and for its international reputation as a major financial centre. In such circumstances, the ability of a defendant to instruct counsel of its choice, whatever his linguistic range, is a matter to be accorded considerable importance.

5.  I really do not consider that the Defendant and the Intervener ought to be left to it to have Mr Barlow’s junior assist him as the case proceeds on the Chinese documents or to translate, at their own irrecoverable cost, the documents for Mr Barlow to work from.

6.  Ultimately, this case management decision by me must be a balancing exercise which involves balancing what I have just referred to against the cost, time and inconvenience of translating the documents. I have asked the parties to concentrate their mind on what are the core Chinese documents and what the cost of their translation would be, this in the light of common experience that many documents are photocopied many times over and included in the trial bundles but in fact very few are ultimately referred to.

7.  I have seen the rival time and cost estimates, with the Defendant’s translators requiring $169,000 for 30 days work for all 630 pages and $85,000 for 20 days work for 403 “core” pages.

8.  The Plaintiff says $386,000 for 45 days work. The cost for translating the core documents would be $204,000. The whole process will require between 2.5 months to 4 months plus additional time for certification.

9.  I am disturbed by the divergence between the parties on cost but where the Defendant and the Intervener have been able to find a reputable translation service who can do the “core” work for $85,000 in 20 days and all the documents for twice that amount in 30 days, I see no reason not to employ its services. The translations can then be reviewed by the parties themselves as they wish and certified by the court. Using the Defendant’s translation service schedule, 30 days for 630 pages plus time for review [76 hours] and special provision for certification by the judiciary (unless the parties are agreed on the translations), I would have thought that this could easily be undertaken within 77 or at most 84 days all in [11 or 12 working weeks].

10.  In striking a balance, which is directed to arriving at a decision which best serves the overall interests of justice as between the parties themselves and public confidence in the administration of justice both domestically and having regard to Hong Kong’s standing in the international community, certainly in litigation of this sort, I am satisfied that the correct direction is that this case need not be tried by a bilingual judge, with the result that the parties should now translate the Chinese documents and at this pre-trial stage, they should share the cost of translation equally. If the Defendant’s solicitors are agreeable then it will only be necessary to translate the core documents, otherwise all the documents will have to be translated with any costs implications as to unnecessary translation costs to be decided by the trial judge at the end of the trial.

11.  The costs of this ruling are to be costs in the cause as part of the costs of the pre-trial review.

12.  The case can now be fixed for trial to start on a date not before the expiry of 84 days from the date of this ruling, on the parties agreed time estimates and in consultation with counsel’s diaries.